PART III : CERTAIN SPECIAL PROCESSES

PART III : CERTAIN SPECIAL PROCESSES

TITLE I: MATRIMONIAL PROCESSES

CHAPTER I : CASES CONCERNING THE DECLARATION OF NULLITY
OF MARRIAGE

ARTICLE 1: THE COMPETENT FORUM

Can. 1671 Matrimonial cases of the baptized belong by their own right to the
ecclesiastical judge.

Can. 1672 Cases concerning the merely civil effects of marriage pertain to the civil
courts, unless particular law lays down that, if such cases are raised as incidental and
accessory matters, they may be heard and decided by an ecclesiastical judge.

Can. 1673 The following tribunals are competent in cases concerning the nullity of
marriage which are not reserved to the Apostolic See:

1â the tribunal of the place where the marriage was celebrated;

2â the tribunal of the place where the respondent has a domicile or quasiédomicile;

3â the tribunal of the place where the plaintiff has a domicile, provided that both
parties live within the territory of the same Episcopal Conference, and that the judicial
Vicar of the domicile of the respondent, after consultation with the respondent, gives
consent;

4â the tribunal of the place in which in fact most of the evidence is to be collected,
provided that consent is given by the judicial Vicar of the domicile of the respondent,
who must first ask the respondent whether he or she has any objection to raise.

ARTICLE 2: THE RIGHT TO CHALLENGE THE VALIDITY OF MARRIAGE

Can. 1674 The following are able to challenge the validity of a marriage:

1â the spouses themselves;

2â the promoter of justice, when the nullity of the marriage has already been made
public, and the marriage cannot be validated or it is not expedient to do so.

Can. 1675 ▀1 A marriage which was not challenged while both parties were alive, cannot
be challenged after the death of either or both, unless the question of validity is a
necessary preliminary to the resolution of another controversy in either the canonical or
the civil forum.

▀2 If a spouse should die during the course of a case, can. 1518 is to be observed.

ARTICLE 3: THE DUTIES OF THE JUDGES

Can. 1676 Before he accepts a case and whenever there appears to be hope of success,
the judge is to use pastoral means to persuade the spouses that, if it is possible, they
should perhaps validate their marriage and resume their conjugal life.

Can. 1677 ▀1 When the petition has been accepted, the presiding judge or the 'ponens'
is to proceed to the notification of the decree of summons, in accordance with can. 1508.

▀2 If, within fifteen days of the notification, neither party has requested a session
to contest the suit, then within the following ten days the presiding judge or 'ponens'
is, by a decree, to decide ex officio the formulation of the doubt or doubts and to notify
the parties accordingly.

▀3 The formulation of the doubt is not only to ask whether the nullity of the
particular marriage is proven, but also to determine the ground or grounds upon which the
validity of the marriage is being challenged.

▀4 If the parties have not objected to this decree within ten days of being notified,
the presiding judge or 'ponens' is, by a new decree, to arrange for the hearing of the
case.

ARTICLE 4: PROOFS

Can. 1678 ▀1 The defender of the bond, the advocates of the parties and, if engaged in
the process, the promoter of justice, have the right:

1â to be present at the examination of the parties, the witnesses and the experts,
without prejudice to can. 1559;

2â to see the judicial acts, even if they are not yet published, and to inspect
documents produced by the parties.

▀2 The parties themselves cannot be present at the sessions mentioned in ▀1, n. 1.

Can. 1679 Unless the evidence brought forward is otherwise complete, in order to weigh
the depositions of the parties in accordance with can. 1536, the judge is, if possible, to
hear witnesses to the credibility of the parties, as well as to gather other indications
and supportive elements.

Can. 1680 In cases concerning impotence or defect of consent by reason of mental
illness, the judge is to use the services of one or more experts, unless from the
circumstances this would obviously serve no purpose. In other cases, the provision of can.
1574 is to be observed.

ARTICLE 5: THE JUDGMENT AND THE APPEAL

Can. 1681 Whenever in the course of the hearing of a case a doubt of a high degree of
probability arises that the marriage has not been consummated, the tribunal can, with the
consent of the parties, suspend the nullity case and complete the instruction of a case
for a dispensation from a nonéconsummated marriage; eventually it can forward the acts to
the Apostolic See, together with a petition, from either or both of the parties for a
dispensation, and with the Opinions of the tribunal and of the Bishop.

Can. 1682 ▀1 The judgment which has first declared the nullity of a marriage,
together with the appeals, if there are any, and the judicial acts, are to be sent ex
officio to the appeal tribunal within twenty days of the publication of the judgment.

▀2 If the judgment given in first instance was in favor of the nullity of the
marriage, the appeal tribunal, after weighing the observations of the defender of the bond
and, if there are any, of the parties, is by its decree either to ratify the decision at
once, or to admit the case to ordinary examination in the new instance.

Can. 1683 If a new ground of nullity of marriage is advanced in the appeal grade, the
tribunal can admit it and give judgment on it as at first instance.

Can. 1684 ▀1 After the judgment which first declared the nullity of the marriage has
been confirmed on appeal either by decree or by another judgment, those whose marriage
has been declared invalid may contract a new marriage as soon as the decree or the second
judgment has been notified to them, unless there is a prohibition appended to the
judgment or decree itself, or imposed by the local Ordinary.

▀2 The provisions of can. 1644 are to be observed even if the judgment which declared
the nullity of the marriage is confirmed not by a second judgment, but by a decree.

Can. 1685 As soon as the sentence is executed, the judicial Vicar must notify the
Ordinary of the place where the marriage was celebrated. This Ordinary must ensure that a
record of the decree of nullity of the marriage, and of any prohibition imposed, is as
soon as possible entered in the registers of marriage and baptism.

ARTICLE 6: THE DOCUMENTARY PROCESS

Can. 1686 A marriage can be declared invalid on the basis of a document which proves
with certainty the existence of a diriment impediment a defect of lawful form or the lack
of a valid proxy mandate; the document must not be open to any contradiction or exception.
It must be equally certain that no dispensation has been given. When a petition in
accordance with can. 1677 has been received alleging such invalidity, the judicial Vicar,
or a judge designated by him, can omit the formalities of the ordinary procedure and,
having summoned the parties, and with the intervention of the defender of the bond,
declare the nullity of the marriage by a judgment.

Can. 1687 ▀1 If the defender of the bond prudently judges that the defects mentioned
in can. 1686, or the lack of dispensation, are not certain, he must appeal to the judge of
second instance. The acts must be sent to the appeal judge and he is to be informed in
writing that it is a documentary process.

▀2 A party who considers him or herself injured retains the right of appeal.

Can. 1688 The judge of second instance, with the intervention of the defender of the
bond and after consulting the parties, is to decide in the same way as in can. 1686
whether the judgment is to be ratified, or whether the case should rather proceed
according to the ordinary course of law, in which event he is to send the case back to the
tribunal of first instance.

ARTICLE 7: GENERAL NORMS

Can. 1689 In the judgment the parties are to be reminded of the moral, and also the
civil, obligations by which they may be bound, both towards one another and in regard to
the support and upbringing of their children.

Can. 1690 Cases for the declaration of nullity of marriage cannot be dealt with by the
oral contentious process.

Can. 1691 In other matters concerning the conduct of the process, the canons concerning
judicial powers in general and concerning the ordinary contentious process are to be
applied, unless the nature of the case demands otherwise; the special norms concerning
cases dealing with the status of persons and cases pertaining to the public good are also
to be observed.

CHAPTER II : CASES CONCERNING THE SEPARATION OF SPOUSES

Can. 1692 ▀1 Unless lawfully provided otherwise in particular places, the personal
separation of baptized spouses can be decided by a decree of the diocesan Bishop, or by
the judgment of a judge in accordance with the following canons.

▀2 Where the ecclesiastical decision does not produce civil effects, or if it is
foreseen that there will be a civil judgment not contrary to the divine law, the Bishop
of the diocese in which the spouses are living can, in the light of their particular
circumstances, give them permission to approach the civil courts.

▀3 If the case is also concerned with the merely civil effects of marriage, the judge
is to endeavor, without prejudice to the provision of ▀2, to have the case brought
before the civil court from the very beginning.

Can. 1693 ▀1 The oral contentious process is to be used, unless either party or the
promoter of justice requests the ordinary contentious process.

▀2 If the ordinary contentious process is used and there is an appeal, the tribunal of
second instance is to proceed in accordance with can. 1682 ▀2, observing what has to be
observed.

Can. 1694 In matters concerning the competence of the tribunal, the provisions of can.
1673 are to be observed.

Can. 1695 Before he accepts the case, and whenever there appears to be hope of success,
the judge is to use pastoral means to induce the parties to be reconciled and to resume
their conjugal life.

Can. 1696 Cases of separation of spouses also concern the public good; the promoter
of
justice must, therefore, always intervene, in accordance with can. 1433.

CHAPTER III : THE PROCESS FOR THE DISPENSATION FROM A
RATIFIED AND NONéCONSUMMATED MARRIAGE

Can. 1697 The parties alone, or indeed one of them even if the other is unwilling, have
the right to seek the favor of a dispensation from a ratified and nonéconsummated
marriage.

Can. 1698 ▀1 Only the Apostolic See gives judgment on the fact of the
nonéconsummation of a marriage and on the existence of a just reason for granting the
dispensation.

▀2 The dispensation, however, is given by the Roman Pontiff alone.

Can. 1699 ▀1 The diocesan Bishop of the place of domicile or quasidomicile of the
petitioner is competent to accept the petition seeking the dispensation. If the request is
well founded, he must arrange for the instruction of the process.

▀2 If, however, the proposed case has special difficulties of a juridical or moral
order, the diocesan Bishop is to consult the Apostolic See.

▀3 Recourse to the Apostolic See is available against the decree of a Bishop who
rejects the petition.

Can. 1700 ▀1 Without prejudice to the provisions of can. 1681, the Bishop is to assign
the instruction of these processes, in a stable manner or case by case, to his own
tribunal or to that of another diocese, or to a suitable priest.

▀2 If, however, a judicial plea has been introduced to declare the nullity of the same
marriage, the instruction of the process is to be assigned to the same tribunal.

Can. 1701 ▀1 In these processes the defender of the bond must always intervene.

▀2 An advocate is not admitted, but the Bishop can, because of the difficulty of a
case, allow the petitioner or respondent to have the assistance of an expert in the law.

Can. 1702 In the instruction of the process both parties are to be heard. As far as
possible, and provided they can be reconciled with the nature of these processes, the
canons concerning the collection of evidence in the ordinary contentious process and in
cases of nullity of marriage are to be followed.

Can. 1703 ▀1 There is no publication of the acts, but if the judge sees that, because
of the evidence tendered, a serious obstacle stands in the way of the plea of the
petitioner or the exception of the respondent, he can prudently make it known to the party
concerned.

▀2 To the party requesting it the judge can show a document which has been presented
or evidence which has been received, and he can set a time for the production of
arguments.

Can. 1704 ▀1 When the instruction is completed, the judge instructor is to give all
the acts, together with a suitable report, to the Bishop. The Bishop is to express his
Opinion on the merits of the case in relation to the alleged fact of nonéconsummation,
the adequacy of the reason for dispensation, and the opportuneness of the favor.

▀2 If the instruction of the process has been entrusted to another tribunal in
accordance with Can. 1700, the observations in favor of the bond of marriage are to be
prepared in that same tribunal. The Opinion spoken of in ▀1 is, however, the province of
the Bishop who gave the commission and the judge instructor is to give him, together with
the acts, a suitable report on the case.

Can. 1705 ▀1 The Bishop is to transmit all the acts to the Apostolic See together with
his Opinion and the observations of the defender of the bond.

▀2 If, in the judgment of the Apostolic See, a supplementary instruction is required,
this will be notified to the Bishop, with a statement of the items on which the acts are
to be supplemented.

▀3 If, however, the answer of the Apostolic See is that the nonéconsummation is not
proven from the evidence produced, then the expert in law mentioned in Can. 1701 ▀2 can
inspect the acts of the case, though not the Opinion of the Bishop, in the tribunal
office, in order to decide whether anything further of importance can be brought forward
to justify another submission of the petition.

Can. 1706 The rescript of dispensation is sent by the Apostolic See to the Bishop. He
is to notify the parties of the rescript, and also as soon as possible direct the parish
priests of the place where the marriage was contracted and of the place where baptism was
received, to make a note of the granting of the dispensation in the registers of marriage
and baptism.

CHAPTER IV : THE PROCESS IN THE CASE OF THE PRESUMED
DEATH OF A SPOUSE

Can. 1707 ▀1 Whenever the death of a spouse cannot be proven by an authentic
ecclesiastical or civil document, the other spouse is not regarded as free from the bond
of marriage until the diocesan Bishop has issued a declaration that death is presumed.

▀2 The diocesan Bishop can give the declaration mentioned in ▀1 only if, after making
suitable investigations, he has reached moral certainty concerning the death of the spouse
from the depositions of witnesses, from hearsay and from other indications. The mere
absence of the spouse, no matter for how long a period, is not sufficient.

▀3 In uncertain and involved cases, the Bishop is to consult the Apostolic See.

TITLE II: CASES FOR THE DECLARATION OF NULLITY OF SACRED
ORDINATION

Can. 1708 The right to impugn the validity of sacred ordination is held by the cleric
himself, or by the Ordinary to whom the cleric is subject, or by the Ordinary in whose
diocese he was ordained.

Can. 1709 ▀1 The petition must be sent to the competent Congregation, which will
decide whether the case is to be determined by the Congregation of the Roman Curia, or by
a tribunal designated by it.

▀2 Once the petition has been sent, the cleric is by the law itself forbidden to
exercise orders.

Can. 1710 If the Congregation remits the case to a tribunal, the canons concerning
trials in general and the ordinary contentious trial are to be observed, unless the nature
of the matter requires otherwise and without prejudice to the provisions of this title.

Can. 1711 In these cases the defender of the bond has the same rights and is bound by
the same duties as the defender of the bond of marriage.

Can. 1712 After a second judgment confirming the nullity of the sacred ordination, the
cleric loses all rights proper to the clerical state and is freed from all its
obligations.

TITLE III: WAYS OF AVOIDING TRIALS

Can. 1713 In order to avoid judicial disputes, agreement or reconciliation can
profitably be adopted, or the controversy can be submitted to the judgment of one or more
arbiters.

Can. 1714 The norms for agreements, for mutual promises to abide by an arbiter's award,
and for arbitral judgments are to be selected by the parties. If the parties have not
chosen any, they are to use the law established by the Episcopal Conference, if such
exists, or the civil law in force in the place where the pact is made.

Can. 1715 ▀1 Agreements and mutual promises to abide by an arbiter's award cannot
validly be employed in matters which pertain to the public good, and in other matters in
which the parties are not free to make such arrangements.

▀2 Whenever the matter concerned demands it, in questions concerning temporal
ecclesiastical goods the formalities established by the law for the alienation of
ecclesiastical goods are to be observed.

Can. 1716 ▀1 If the civil law does not recognize the force of an arbitral judgment
unless it is confirmed by a judge, an arbitral judgment in an ecclesiastical controversy
has no force in the canonical forum unless it is confirmed by an ecclesiastical judge of
the place in which it was given.

▀2 If, however, the civil law admits of a challenge to an arbitral judgment before a
civil judge, the same challenge may be brought in the canonical forum before an
ecclesiastical judge who is competent to judge the controversy at first instance.